abuse of power by a superior, a professional, or someone in a position of trust or authority

Regardless of the form it takes, we understand the devastating impact such attacks can have on the lives of those who experience them. Recovery from a traumatic assault can be a long and difficult process. Survivors have to deal not only with the immediate trauma of the assault, but also with the long-term fallout that often ensues including depression, post-traumatic stress disorder (PTSD), anxiety, challenges with trust, difficulty forming new relationships, and impacts on ongoing education and employment.

Unfortunately, survivors must also wrestle with a criminal justice system that many find does not adequately serve their interests or protect their rights as victims of crime.

If you have experienced abuse or assault, it's important for you to understand that you may have other options and resources available to support and empower you beyond pursuing criminal charges.

Ask an Expert

At Martin & Hillyer, Claire Wilkinson, Kennedy Nolan, and their teams are committed to empowering those who have experienced abuse or assault to take charge of their future. We understand that every case is different, and no two people's goals are the same. Our role is not to tell people what to do; instead, we aim to give survivors all the tools and information they need to make their own informed decisions about their future.

Unfortunately, survivors must also wrestle with a criminal justice system that many find fails to adequately serve their interests or protect their rights as victims of crime.

Consulting with a Local Lawyer

Our initial consultation:

is free

can take place in person, or be conducted over the phone

will give you an opportunity to share your experience in a supportive, judgment-free and entirely confidential environment

will allow us to talk with you about the legal options you have, and make sure you understand everything you need to know about the process

is no obligation: you won’t have to sign papers or commit to anything at the consultation: our goal during the consultation is simply to hear you out, and to give you the tools and information you need to make an informed decision about whether and how you would like to proceed with your legal options

Learn more about what to expect and get answers to common questions about the consultation process here.

Should I Sue for a Sexual Assault?

During your free initial consultation, we will talk with you about what you need keep in mind if you are considering a civil lawsuit. The most important question will be whether or not a civil case is the best option to achieve your personal goals. We will make sure you understand what you can hope to get out of a civil case - and what you can't.

A civil case is about recovering financial compensation, so if the assailant has no money or assets with which to compensate you, it may not make sense to pursue a lawsuit. Sometimes, pursuing criminal charges, a regulatory complaint, a victim's compensation claim, or accessing other local support services for survivors may be the best route to help you achieve your goals, instead of a civil claim.

We will also talk about what you can expect from the litigation process if you decide to proceed with a civil case. It's important you understand the amount of money you stand to recover, the risks and costs you may face, and the new stresses the litigation can cause you. Our goal is to ensure that the entire process is empowering for you, not re-victimizing. We will work to maximize your compensation through settlement negotiation if we can, and if necessary, we will fight for your interest through a trial to get a fair judgment on your behalf from a judge or a jury.

Find out How We Can Help You

If you are wondering whether a civil lawsuit may be an appropriate way to help right the wrong that was committed against you, then we can help. Our team at Martin & Hillyer knows how difficult and painful it can be for you to pursue such a case and we will be with you every step of the way to support you through the legal process.

How long can I wait to start a civil case? Is there a time limit?

Limitation periods restrict how long a person has to start a lawsuit for most types of lawsuits in Ontario. In most (but not all) cases, a person has 2 years from the date of an injury or loss to start a lawsuit against someone. If someone does not start a lawsuit before the limitation date, in most cases they are unable to ever do so.

However, for a long time the government has recognized that sexual assault claims are a special case, and that sometimes a strict, 2-year limitation period is not reasonable. As a result, some exceptions were created to the 2-year rule for some types of sexual assault claims. The exceptions did not apply in every assault or sexual assault case, and lawyers often had to argue about whether or not an exception to the limitation period applied in a given case.

In 2016, the Ontario government passed a new law extending the exception to all sexual assault claims, in addition to certain non-sexual assault claims, and certain sexual misconduct claims. As a result, limitation periods have been done away with for most sexual assault and some other assault-type claims.

Even with this new law, however, there are always complications and exceptions. Determining limitation periods is not always a straightforward process, and there are other reasons you may not want to wait to start a lawsuit in some cases. Because of this, you should always ask a lawyer if a limitation period applies in your case, and if there are any other factors you need to keep in mind when deciding whether or not to begin a case.

Can I start a civil case even if there was no criminal case? How are the two related?

A civil case is entirely separate from a criminal case, and there are important differences between the two:

Criminal Case

The government pursues criminal charges against the perpetrator for breaking a criminal law.

Purpose is to punish and hopefully rehabilitate the perpetrator, and also to protect the public.

Entirely about the perpetrator and the public law they broke. The person who was assaulted will take part in the criminal process as a witness, but at its core, the process is not about the survivor of the abuse or assault.

Civil Lawsuit

The person who was assaulted sues the perpetrator because of the wrong committed against him or her.

Purpose is to compensate the victim for the damages they have suffered.

Entirely about the survivor and the impact the assault has had on him or her, including physical and psychological pain and suffering and any income losses sustained because of the lasting impact of the assault or abuse.

Since the two processes are totally different, this means that you can sue the perpetrator of an assault civilly regardless of whether or not there were criminal charges. You can even pursue a civil claim if a defendant was found not guilty criminally, or if charges against him or her were dropped.

This is because the "burden of proof" in a criminal trial is different than in a civil trial: even if the Crown at a criminal trial could not prove that an assault occurred "beyond a reasonable doubt" (which is an extremely difficult threshold to meet), we may still be able to prove that it occurred on a "balance of probabilities" (which means that there is a greater than 50% chance that the assault occurred). This is why civil cases can still be successful even if there was no criminal conviction.

On the flip side, if a defendant was found guilty criminally for assault, that means he or she has already been found to have committed the assault to a higher standard than is needed in a civil case. In most cases, this means we won't need to prove the assault occurred for a second time, and can rely on the criminal conviction.

Does it always make sense to sue?

The short answer is no - a lawsuit will not always be your best option after experiencing assault or abuse. A lawsuit is about recovering financial compensation from a defendant for your losses - if you are seeking something other than financial compensation, a civil lawsuit is probably not the way to go.

In addition, if the perpetrator of an assault has no money or other assets with which to pay you the compensation to which you are entitled, a lawsuit may be futile. You might succeed in getting a judgment from a court or negotiating a settlement agreement, but neither of these does you much good if the defendant simply does not have the resources to pay you what he or she is required to pay.

In many civil cases involving negligence, a defendant will have insurance coverage that will pay out any claims. But when dealing with intentional wrongdoing like an assault, insurance policies generally will not pay out. It’s therefore not usually possible to get compensation from an assailant’s insurance policy in assault or sexual assault cases.

In some cases, there may be other defendants who are in part responsible for the damages you sustained in an assault, and they may have insurance coverage or other assets that make it possible to obtain compensation for your damages, even if the defendant him or herself has limited assets and no insurance coverage.

These other defendants can be institutions such as schools, boards of education, hospitals, churches or children’s aid societies that allowed assaults to occur which they should have been able to prevent. They can also be private employers & businesses or private individuals who negligently allowed an assault to occur. If such third parties were negligent or can be found vicariously liable for your damages, it is more likely that you will be able to successfully recover damages from a civil claim.

If third party coverage is not available, the last resort for most civil claims is trying to enforce a judgment against a defendant by seizing and selling some of his or her assets (such as a house), or by garnishing his or her wages. But these methods are complex, expensive and not always practical, particularly when a defendant has no significant assets and no income stream to go after.

The unfortunate reality is that it is often simply not practical to bring a civil lawsuit in abuse and assault cases. In many such cases, rather than expending emotional and financial resources on a futile lawsuit, survivors may be better served by looking elsewhere for the compensation, validation and justice they are seeking.

Other avenues might include pursuing criminal charges with the police, seeking compensation from the Criminal Injuries Compensation Board, pursuing a regulatory complaint against a professional, or accessing other local community support services.

At the initial consultation and throughout the case, we explore all the options available to our clients, and help them decide which route will provide the best result to help them access the resources and compensation they need.

How much does a lawsuit cost? What is a contingency fee?

It’s important for you to understand how your lawyer will be paid. During your initial consultation, we will speak with you in detail about how our legal fees and expenses will work in your specific case so that you understand all your options before deciding if and how you would like to proceed.

In most cases involving assault or sexual assault, your lawyer will be paid based on a contingency fee. Under a contingency fee, you do not pay your lawyer’s fees until the end of your case, and the fee depends on the result obtained in your case. Typically, the lawyer’s fee will be a fixed percentage of any amount recovered on your behalf. This means that if nothing is recovered, the lawyer will not charge you a fee.

When you see headlines in advertising such as “no win, no fee” or “you don’t pay unless we win,” a contingency fee arrangement is what is being referred to. But these headlines can be misleading: what counts as a “win?” Do expenses still have to be paid? Does the defendant pay any of the fee? Is the percentage fee calculated on all amounts recovered? Is a contingency fee always available?

The reality is rarely as simple as the slogans and marketing would lead you to believe. In order for you to make an informed decision about how you would like to proceed, we believe it’s essential that you have a full understanding of how we will be paid. To make sure you understand exactly what a contingency fee is (and what it is not), we go over our fees in detail during the initial consultation, and we don't require you to agree to anything right then and there. We want you to to ask questions and be comfortable with your options before you make any decisions about how you would like to proceed.

To find out more about the legal fees and expenses that would apply in your case, we recommend that you get in touch with us to arrange a free, no obligation consultation.

Will my case settle, or will I have to go to court?

The vast majority of lawsuits in Ontario settle before they go to court. A settlement is where both sides in the lawsuit voluntarily agree to a compromise in order to resolve a dispute without the costs, risks and delays that come with taking a case to court. If your case is settled, the defendant will agree to pay you some amount of money for your damages, and in exchange, you will agree to drop your lawsuit.

While you won’t have to go to court if a case settles, there are other preliminary stages your case might go through that you will have to participate in.

A settlement has to be voluntary for both sides, and we can't force a defendant to settle. Even if a defendant makes an offer to settle, if the offer doesn’t adequately compensate you for your losses, it may be our advice that you not settle your case.

If a case does not settle, you can go to court to have a judge or jury make a final decision. Going to court increases the costs and risks in your case, but sometimes, where a reasonable settlement is not possible, it is the only way to reach a fair outcome.

We will be there to advise you and represent your interests throughout any settlement negotiations, and throughout a court case if one is necessary. In all cases, the decision about whether to settle your case or to take it to court will be yours to make.

REQUEST A CONSULTATION

If your matter is urgent or of a sensitive nature, please call us at (905) 637-5641 to arrange a meeting. Otherwise, complete the form below and we will contact you within 1 business day to arrange your consultation. Questions about what to expect from a legal consultation? Click here for more information about the process.

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The information on this site is not legal advice, and you should not rely upon it as such. If you have a legal question, you should always consult with a lawyer.
Even if you use this site or consult with us, remember that we are not retained to represent you and no lawyer-client relationship exists unless and until you receive written confirmation from us.